Monteiro v State of New South Wales

1. [1]

   By Notice of Motion filed 20 October 2021, the plaintiff, Mr Monteiro, applies for an order under s 13 Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) revoking the extended supervision order imposed on him by Fagan J on 6 July 2020 (State of New South Wales v Monteiro (Final) [2020] NSWSC 881). It appears to me, as I pointed out to Mr Monteiro during the hearing before me, that the proceedings are probably irregular because they were not commenced by summons: Rule 6.4(1)(h) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). I will return to this question.

2. [2]

   The interlocutory application with which I am concerned is made by a further Notice of Motion filed by Mr Monteiro on 1 November 2021 seeking leave to issue various subpoenas to produce documents, subpoenas to give evidence and the making of other orders to procure evidence. Under Rule 7.3 UCPR a person not represented by a solicitor in the proceedings may not issue a subpoena without leave.

3. [3]

   It may also be relevant to record that on 4 August 2020 Mr Monteiro sought to institute an appeal under s 22 of the Act from the extended supervision order. The appeal has not been prosecuted (2020/00226741).

Issues

1. [4]

   The Notice of Motion by which Mr Monteiro purported to commence the application for revocation states no ground. From an affidavit filed with the motion for leave, which Mr Monteiro told me he did not read on the hearing, it is apparent that he does not rely on a material change in circumstances in accordance with s 13(1B) of the Act to found his claim for revocation, rather he seeks a reconsideration or review of the decision of Fagan J. No point was taken by the defendant, the State of New South Wales (“the State”), about the competence of the proceedings. During Mr Monteiro’s oral submissions in discussion with me he seemed to articulate the following grounds:

   1. (1)

      the extended supervision order imposed is punitive not protective.

   2. (2)

      The risk assessments reports of the experts appointed by the Court under s 7(4) and the s 6(3)(b) report were “false”.

   3. (3)

      The risk assessments reports referred to in Ground 2 were founded on professional tools which have been discredited.

   4. (4)

      Fagan J took into account alleged acts of which Mr Monteiro had not been convicted in formulating the risk of him committing a serious offence if not kept under supervision.

   5. (5)

      In making an Interim Supervision Order on 3 April 2020 Cavanagh J received evidence that had not been shown to Mr Monteiro: State of New South Wales v Monteiro (AKA Lowe) (No 3) (Preliminary) [2020] NSWSC 350 at [6]; State of New South Wales v Monteiro (AKA Lowe) (No 2) [2020] NSWSC 349.

   6. (6)

      Fagan J erred by failing to consider evidence favourable to Mr Monteiro.

   7. (7)

      Fagan J erred by inverting the onus of proof.

   8. (8)

      Fagan J failed to take into account a relevant consideration viz Mr Monteiro’s desire to move on with his life.

Relief sought

1. [5]

   It is necessary to set out the nature of the orders sought by Mr Monteiro. I make every allowance for his lack of legal training. The most effective way of dealing with the matter is to set out the relief sought in full. In doing so I have redacted a particular email address to protect Mr Monteiro’s privacy and chosen not to name the solicitor and barrister who formerly acted and appeared for him respectively:

Relevant legal principles concerning revocation of extended supervision orders

1. [6]

   So far as material for present purposes s 13 of the Act provides as follows:

2. [7]

   Section 21 of the Act is also relevant:

3. [8]

   In New South Wales v Kay [2018] NSWSC 1235, Wilson J when asked to vary an existing order by the imposition of further conditions said (at [66]), “the wording of [s 31] is such that the Court’s discretion is unfettered, subject to the objects and provisions of the Act”.

4. [9]

   In New South Wales v Banks (Preliminary) [2021] NSWSC 1246, Lonergan J referred to New South Wales v Myers [2018] NSWSC 1789; New South Wales v Schmidt (Preliminary) [2019] NSWSC 52 and New South Wales v Carr [2020] NSWSC 643. In each of those cases the s 13(1B) power had been exercised to find that due to a change in circumstances a person subject to the order no longer poses an unacceptable risk.

5. [10]

   In New South Wales v Mills [2019] NSWSC 298 I observed at [23], “that (while) s 13 does not expressly confer a power to review or reconsider an extended supervision order, powers of review and reconsideration may well be implicit in a power to “vary or revoke” subject to such limitations as may be found in the language of the Act”. By reference to ss 21 and 22, I held that an extended supervision order as a final order for the purpose of the doctrine of res judicata (at [27]), subject of course to the express power to vary or revoke. I questioned whether s 13 conferred an unfettered discretion (at [30]) and said:

6. [11]

   Mr Monteiro’s grounds for revocation of the ESO as formulated during the discussion on hearing of his application are really more apt as grounds of appeal. Given the full right of appeal conferred by s 22, I doubt that a reconsideration or review of the original decision is permitted at first instance by the conferral of a power to revoke. It would seem to me that any revocation can only speak from the date on which the power to revoke is exercised and on the basis of evidence or grounds not reasonably available to the person subject to the order when the order was made.

7. [12]

   As no question of the competence of Mr Monteiro’s application was ventilated, it is unnecessary to pursue these questions further.

Principles relating to the relief sought

1. [13]

   While bearing in mind the nature of the power invoked by Mr Monteiro, it is important to have regard to the principles governing the proper use of subpoenas. Rule 7.3 UCPR is in the following terms:

2. [14]

   The requirement for leave in the case of a self-represented litigant is to provide a filter excluding an abuse of the Court’s power to issue subpoenas, especially to third parties to the litigation. In short, the requirement for leave is to protect the Court’s processes by requiring the self-represented party who seeks leave to demonstrate that each subpoena sought to be issued has a legitimate forensic purpose.

3. [15]

   In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, Bell P said ([at [65]):

4. [16]

   In Waind v Hill and National Employers’ Mutual General Association Limited [1978] 1 NSWLR 372 (“Waind v Hill”), Moffitt P (Hutley and Glass JJA agreeing) said (at p 382) that a subpoena may lack a legitimate forensic purpose if its terms “are so wide that it is oppressive”. His Honour gave the example of requiring a branch of a bank to produce all cheques received by it in a particular year, in order to find, if it exists, a forged cheque. His Honour also said:

Determination

1. [17]

   I must say, from the content of Mr Monteiro’s oral argument it is clear that he is bent upon the conduct of a wide ranging inquiry into the conduct of the police and corrective services not just in their treatment of him as he perceives it but much more generally, if he is permitted to do so. For this purpose, to adapt Moffitt P’s language, he has advanced at best ill-defined, spurious arguments of potential relevance to cover the absence of any “conceivable relation to [these] proceedings.” At least this is so in relation to most claimed categories. Moreover, he is under the misapprehension that the processes of the court can be invoked in these proceedings to impermissibly garner material in relation to other extent proceedings he has brought. Even so, I have attempted to evaluate his claims through the lens of potential relevance to the case at hand.

2. [18]

   Category 1 concerns proposed subpoenas to give evidence to his former barrister and solicitor. The purpose of the subpoena expressed may possibly be relevant to an appeal, but it is not a legitimate forensic purpose in relation to any of the grounds for revocation expressed by Mr Monteiro in argument as set out above. More fundamentally there is no hearing date and no occasion has arisen for identifying persons who may give relevant testimony at any hearing. It would be an abuse of the Court’s process to permit Mr Monteiro to conduct an examination of persons not expressly authorised by statute or the rules in advance of the hearing. I refuse leave for category 1.

3. [19]

   Category 2 is comment or argument and requires no order.

4. [20]

   Category 3 relates to email correspondence passing between Mr Monteiro and the solicitor who acted for him before Fagan J. The redacted email address is his. He states that he is unable to access it because his personal electronic devices have been seized by, and remain within the possession of, police (see category 12). Presumably this category relates to the purpose referred to in category 1 and the same reasons for refusal apply. Further, there is no evidence that any request has been made by Mr Monteiro to his former solicitor for the provision of a copy of the email correspondence. For that additional reason I would also refuse leave.

5. [21]

   Category 4 does not relate to a subpoena at all. Rather it seeks an order that information from a mobile phone be converted into a different format. Information is sought “for all of 2020/2021”. It is not clear whether this means for 2 calendar years or for a financial year. Nor is the purpose of the creation of information in the format sought made obvious. I am not satisfied that Mr Monteiro has any legitimate forensic purpose in seeking the information and it falls into the category of oppression because of its temporal breadth. To my mind a subpoena may legitimately require the production of documents, but not the conversion of documents into a different form.

6. [22]

   Category 5, assuming it relates to a proposed subpoena, seeks the production of character references and affidavits “pertaining to, the proceedings before Fagan J”. Again, as far as leave is concerned, there is no evidence that Mr Monteiro has sought the papers to which he may be entitled from his former solicitor, or that the former solicitor has refused to produce them. Nor is it apparent that the material relates to the grounds articulated. There is no evidence that Mr Monteiro does not have a copy of this material within his papers and I am not satisfied that he has a legitimate forensic purpose for requiring his former solicitor to produce the material. If this material was used before Fagan J it will be otherwise available (see [31] below).

7. [23]

   Category 6 relates to all emails sent or received by Mr Monteiro’s personal account between unspecified police officers and lawyers over three calendar years. The breadth of the category is of itself oppressive and no legitimate forensic purpose is evident. This category does appear to be a prime example of “fishing”.

8. [24]

   Category 7 falls into category 1 but relating to counsel. For the same reasons expressed in respect of category 1, I refuse leave to issue a subpoena in the terms sought in category 7.

9. [25]

   Category 8, in my judgment, extends beyond the Court’s power to subpoena documents. The terms it seeks is a Cell-Bright forensic analysis. It seems to require the creation of an expert report in relation to a police officer’s mobile phone. Indeed, it seeks similar “analysis” in respect of the mobile phones of “the other investigating officers”. It also seeks a swathe of electronic communication of a named officer “et al”. It purports to extend to “contact in person” with “potential or actual witnesses, media agencies/journalists and all entries and enquiries made by police” into the police computer system. The breadth of what is required is breath-taking and goes well beyond oppression. Leave is refused. It cannot be said the category bears any “conceivable relation” with the present proceeding.

10. [26]

    Category 9 again seeks to require the bringing into existence of a report involving a “forensic analysis” of certain material which does not in terms relate only to former solicitor, but to others “on her behalf”. It is not limited in any way to any matter which might intelligently be based on the application to revoke the extended supervision order. The only point of limitation is anything sent or received “regarding” Mr Monteiro. Even if the category might properly be the subject of a subpoena to produce documents, no legitimate forensic purpose is evident.

11. [27]

    Category 10 may possibly be relevant as much as it relates to Justice Health files pertaining to Mr Monteiro. I would grant leave for a subpoena to be issued for their production. Likewise, Category 11 at least so far as the documents described from part of the department’s records relating to his custody and management in the community.

12. [28]

    Category 12 seeks the return of Mr Monteiro’s personal property lawfully seized by police. It seems to me that this is an improper use of a subpoena in the sense discussed by Moffitt P in Waind v Hill at p 382. It falls into the category of what his Honour described as a “spurious purpose” connected to other proceedings or “for some private purpose”. Mr Mykkeltvedt of Counsel who appeared for the State drew my attention to ss 218 and 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). Section 218 requires a police officer to return seized property if satisfied that its retention as evidence is not required and it is lawful for the person from whom it was seized to have possession of it. Section 219 empowers a court to order the return of the seized property. Mr Monteiro has not made an application under s 219. He read an email received from the relevant officer claiming the items were required for evidence because Mr Monteiro has a conviction appeal pending. It is an abuse of process to seek to use a subpoena under the rules for the pending litigation for a purpose extraneous to the proceedings, even if otherwise lawful. Mr Monteiro confirmed that he has lodged a conviction appeal against his conviction for breaches of the ESO and I express no opinion about whether the retention of his personal electronic devices by police as evidence for that purpose is lawfully required.

13. [29]

    Without purporting to provide any legal advice, it seems to me that it would be necessary for Mr Monteiro to make an application under s 219 LEPRA to a court, by way of summons duly served on the officer who seized the devices, or the Commissioner for Police, seeking an order that the devices be returned, which can be dealt with in a regular manner. I refuse leave to issue a subpoena in these proceedings as a substitute for due process in respect of the seized property.

14. [30]

    Category 13 should not be dealt with by way of a subpoena. So far as Category 13 is concerned, Mr Mykkeltvedt drew my attention to Rule 33.13 UCPR. Rather than a subpoena, the correct procedure is to require Mr Monteiro to comply with Rule 33.13 by applying to the Registrar in writing identifying the documents he requires and seeking their production to him for his inspection. It is not appropriate that leave be given for the issue of a subpoena.

15. [31]

    As I have said, Mr Monteiro seeks leave to issue subpoenas to give evidence to a large number of disparate persons who may or may not have relevant evidence in relation to his application to revoke the ESO. As I have said already, the question of who is a relevant witness is premature and will not arise until the usual interlocutory steps have been taken in the proceedings. I repeat, it is not a legitimate use of a subpoena to give evidence to require persons to attend court for an examination not specifically authorised by statute or the rules in advance of the hearing and I would refuse leave in relation to category 14.

Orders:

1. [32]

   For the reasons given, in matter no. 2020/70914:

   1. (1)

      Under Rule 7.3 Uniform Civil Procedure Rules 2005 (NSW) grant leave to the plaintiff to issue a subpoena to the Commissioner, Corrective Services New South Wales for the production of the Justice Health NSW medical files pertaining to Mr Monteiro and to his custodial records and the records of Community Corrections NSW including case notes and Trim psychology case notes (if applicable).

   2. (2)

      The Notice of Motion of 1 November 2021 is otherwise dismissed.

   3. (3)

      Direct the plaintiff to regularise the proceedings by filing a summons as initiating process in accordance with Rule 6.4(1)(h) UCPR stating the grounds upon which the revocation of the extended supervision order to which he is subject is sought.

   4. (4)

      List the matter for directions before the Registrar at 9 a.m. on 8 March 2022.

2. [33]

   In matter no. 2021/297999:

   1. (1)

      List the matter for directions before the Registrar at 9 a.m. on 8 March 2022.